I. INTRODUCTION. In Bethany Beach and South Bethany the breaking of waves upon the beach

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1 Jack Hobaugh STANDING FOR SANDING: NOURISHMENT FOR PRIVATE BEACHES I. INTRODUCTION In Bethany Beach and South Bethany the breaking of waves upon the beach remains a constant. Each wave that comes ashore moves particles of sand. The sand is constantly migrating. To towns like Bethany Beach and South Bethany the sand is directly connected to the towns economy. The beach attracts inhabitants, investors, tourists and weekenders that end up spending their dollars in Bethany Beach and South Bethany. In between the public beaches of Bethany and South Bethany lies the private beach of Sea Colony. The Sea Colony beach supports approximately 2200 condo units in addition to townhomes and single-family homes. Maintenance of both the private and public beaches includes beach replenishment, the pumping of sand that mother nature carried into her ocean through hurricanes and noreasters, back onto the beach. Another round of public beach replenishment financed by Delaware and the federal government is slated for Bethany Beach and South Bethany in early The sand for the replenishment is dredged from the sea, a couple of miles from the coast. Technically, this sand is under state jurisdiction and therefore designated as public sand. Sea Colony, has also applied for permits with both the State of Delaware and the federal government to participate in the beach replenishment project and receive public sand for their private beach. Should a private beach replenished with public sand have public access attached to that sand? The answer depends on several variables, but in Sea Colony s case, public sand should not change Sea Colony s beach from private to public. Part II of this paper provides basic background information on beach replenishment including the history of beach replenishment, the related economics, a

2 discussion of sand, and Delaware s beach replenishment program. Part III covers the precedent of beach replenishment through a look at federal and state laws and policy enacted to support beach replenishment, agency regulations enacted to carry out the federal and state statutes and policy, and finally, Delaware case law and Delaware Attorney General opinions. Part IV focuses on the beach replenishment details for the upcoming beach replenishment project for Bethany Beach, Sea Colony and South Bethany. Also included is a discussion of facts specific to Sea Colony and the opposition s position against providing public sand to Sea Colony. Part V is the analysis which applies applicable science, economics, laws, policy and case history to the facts to answer the question of whether public sand placed on a private beach should attach public access to that particular beach. Part VI is the final section containing the author s conclusion. II. BACKGROUND This part comprises five subsections covering several aspects of beach replenishment. Section A discusses the bare bone basics of beach replenishment. Section B covers the history of beach replenishment. Section C discusses the economics of beach replenishment. Section D covers sand transport and sand borrow sites. Section E reviews Delaware s beach replenishment program. A. Beach Replenishment Basics Beach replenishment involves dredging sand from the ocean and placing that sand on top of the existing beach. 1 Beaches are replenished for two reasons: (1) Tourists are 1 Anthony Bates Partnership Dredging and Coastal Consultants, Beach Replenishment, (last visited Jan. 1, 2007). 2

3 attracted to nice sandy beaches, and (2) beaches protect inland structure from surging seas. 2 To harvest the sand from the bottom of the sea for the beach, a suction hopper dredge pumps the sand through a pipeline on the seabed to the beach. 3 Figure 1: Suction Hopper Dredger on the Horizon Preparing to Pump Sand to a Barren Beach. 4 Once the sand is piled on the beach, heavy equipment can spread the sand to create the desired beach effect. 5 2 Id. 3 Id. 4 Id. 5 Id. 3

4 Figure 2: Sand on the beach ready to spread 6 B. Beach Replenishment History Seawalls, jetties, bulkheads and groins were the first attempts taken in the reduction of erosion. 7 Beach replenishment, also known as beach nourishment is today s primary method to fight beach erosion. 8 The need for shore protection was acknowledged first in New Jersey in the latter part of the 19th century and in the early decades of the 20th century due to significant beach erosion resulting from both intense coastal development and storm and hurricane activity. 9 In 1922, New Jersey formed an engineering advisory board focused on studying changes occurring to the Atlantic Ocean coastline. 10 The American Shore and Beach Preservation Association (ASBPA) was formed as a result of the engineering advisory board Id. 7 History and Evolution of Laws Relating to Beach Nourishment, (last visited Jan. 1, 2007). 8 Id. 9 Id. 10 Id. 11 Id. 4

5 Because of severe hurricane activity and ASBPA lobbying, Congress in 1930 enacted P.L , authorizing the US Army Corps of Engineers (USACE) to conduct shoreline erosion control studies, but not construction, in cooperation with state governments. 12 The agency responsible for assembling the data and providing coastal protection expertise was the Beach Erosion Board (BEB). 13 Five major hurricanes occurred between 1940 and 1945, prompting Congress to enact P.L in P.L allowed the use of federal funds for construction costs in addition to the studies for projects along publicly owned shores. 15 Then 1954 and 1955 brought more hurricanes and in 1956 Congress enacted P.L expanding the authority for shore protection to include privately owned shores where substantial public benefits would result. 16 The Gulf and Atlantic coast experienced four additional major hurricanes between 1956 and 1961 influencing the enactment of the River and Harbor Act of The Act increased the percentage of federal funds available for shore protection study costs leading to authorization, federal participation in the cost of beach erosion and shore protection when the beaches were publicly owned or used. 18 In 1963, Congress enacted P.L and replaced the BEB with the Coastal Engineering Research Board (CERB) and the Coastal Engineering Research Center [CERC]. 19 CERB research initiatives are implemented by CERC Id. 13 Id. 14 Id. 15 Id. 16 Id. (emphasis added). 17 Id. 18 Id. 19 Id. 20 Id. 5

6 Today, several federal agencies are active in shore protection and coastal development including USACE, the Federal Emergency Management Agency (FEMA), the National Oceanic and Atmospheric Administration (NOAA), The United States Geological Survey (USGS), and the Minerals Management Service (MMS) of the Department of the Interior (DOI). 21 The next section addresses the economics of beach nourishment. C. Economics of Beach Nourishment A study conducted at the University of Delaware has concluded that the cost of retreat 22 exceeds the cost of nourishment by more than a factor of three over the next 50 years. 23 It is also worth noting that there is no recreation loss under nourishment or retreat since the beach would be assumed to be managed for recreation regardless of retreat or nourishment. 24 According to a report from the ASBPA, every $1 of federal funds spent in the replenishment of beaches provides $4 in national economic benefits. 25 To date, quite a few of those federal dollars have been spent on beach nourishment. Between 1950 and 1994, Congress authorized 132 shore protection projects. 26 During that time, the USACE spent an average of approximately $25 million per year in 2001 dollars on beach nourishment. 27 In FY 2002, Congress appropriated $134.7 million for shore protection in the 2002 Water Resources 21 Id. 22 Retreat is another option instead of beach nourishment. With retreat the beach is allowed to erode and the structures are allowed to fall into the ocean or are moved inland in advance of the ocean s advance. 23 JEFF WAKEFIELD & GEORGE R. PARSONS, A COMPARISON OF NOURISHMENT AND RETREAT COSTS ON DELAWARE S OCEAN BEACHES 1 (2002), 24 Id. at Ron MacArthur, Coastal Erosion: a Tale of Two Towers, CAPE GAZETTE, Oct. 18, 2006, 26 A Primer on Beach Nourishment Externalities, (last visited Jan. 1, 2007). 27 Id. 6

7 Appropriations Bill. 28 These federal subsidies have increased under pressures from residents and business owners living along the coast. 29 The demand for beach nourishment originates from three areas: (1) people who reside on the beach, (2) people who use the beach for recreation, and (3) people who depend on both (1) and (2) to make a living. 30 The common denominator in all three areas is people. As the U.S. population continues to grow, so will the coastal population. 31 The increase in population will feed the demand for shore protection along three fronts: (1) those within driving distance of the shore will demand recreational opportunities, (2) the increase in tourism will result in the growth of retail businesses... in addition to businesses providing leased properties and hotel/motel accommodations, and (3) the number and value of housing units will increase as the population increases A Primer on Beach Nourishment Externalities, supra note Id. 30 Social and Demographic Trends that Affect the Need for Beach Nourishment, (last visited Jan. 1, 2007). 31 Id. 32 Id. 7

8 YEAR POPULATION COASTAL POPULATION Figure 3: U.S. Census Bureau s Mid Range Population Projection 33 Because the amount of coastal land is a fixed commodity, the price of land will increase with the population. 34 Higher prices for land will lead to higher priced dwellings being built by those who could afford the higher price of the land. 35 Because the dwellings in these areas will have a high price tag, the protection of these investments will also become more valuable. Therefore, as the value of property along the shore increases, the value of storm damage reduction from nourishment will also increase. 36 However, the economic benefits from beach nourishment are greater than just protecting dwellings from storm damage. In addition to storm damage reduction (SDR), beach nourishment also provides recreational benefits and a category described as other economic benefits. 37 The other economic benefits category considers the impact of a proposed action on business and 33 Id. 34 Id. 35 Id. 36 Id. (emphasis added). 37 Types of Economic Benefits Associated with Beach Nourishment Projects, (last visited Jan. 1, 2007). 8

9 tax revenues and property valuations. 38 For federal funds to be applied, a cost-benefit analysis must be performed across all three categories. 39 The resulting cost-benefit ratio must then be justified under the National Economic Development (NED) scheme. 40 Notable in this analysis is that at the present time, beach nourishment projects are eligible for federal cost sharing only if the SDR benefits comprise more than 50 percent of total project benefits. 41 A wide beach provides measurable economic benefits to owners and users of upland property, both public and private, by protecting the property from losses or destruction due to storms. 42 The SDR benefit is calculated by subtracting the expected value of damages with beach nourishment from the expected value of damages without beach nourishment. 43 Included in the value of damages are anticipated costs to protect the property and the dollar-value of land and buildings lost to erosion. 44 probability of a storm occurring must also be factored into the overall analysis. 45 The The SDR benefits normally fit into one of the following categories: Land loss prevention Upland structure damage/loss prevention Shore protection structure construction costs prevented Shore protection structure maintenance costs prevented Public safety (for example, protection of roads) Benefits to downdrift properties 46 Downdrift properties are those properties that are adjacent to the property being nourished. Because sand is migratory, adjacent properties would benefit from the beach 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. 43 Id. 44 Id. 45 Id. 46 Id. 9

10 nourishment unless manmade structures such as groins are in place to stop the migration. 47 Although recreational beach benefits are important to all who visit the beach, they have no direct market value because the recreational benefits of the beach are distributed to users at a zero or near zero cost. 48 However, these recreational benefits are closely related to other economic benefits that the community receives as people venture to the beach for recreation. 49 The other economic benefits that are closely tied to the recreational benefits and storm protection benefits are: Increased business and tax revenues Enhanced property values Increased property tax revenues Job creation Environmental benefits Aesthetic benefits 50 In March 1998, Jack Faucett Associates conducted a study to evaluate the economics of an ongoing five-year beach maintenance program in Delaware. 51 The study assessed what would happen over the next five years if Delaware decided to end its beach nourishment program and permit the shoreline to return to its previously eroding condition (erosion rates ranging from two to four feet per year) 52 : A savings of $9 million in beach nourishment costs; A loss of greater than $30.2 million in revenues related to tourists; 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. (citing JACK FAUCETT ASSOC., INC., THE ECONOMIC EFFECTS OF A FIVE YEAR NOURISHMENT PROGRAM FOR THE OCEAN BEACHES OF DELAWARE (1998)). 52 Id. 10

11 A loss of 625 beach area jobs; A reduction in wages and salaries of $11.5 million; A reduction in profits of $1.6 million; A loss of state and local revenues of $2.3 million; A loss of beach property value of $43.3 million. 53 Assuming these figures are correct, the $9 million in beach nourishment costs would be well spent in spite of average benefits to oceanfront property owners comprising 60 to 90 percent of the total project benefits. 54 Tax money from federal, state or local governments typically funds beach nourishment projects. Federal funds are available when beaches provide public access. 55 Along beaches fronting privately owned properties, there must be sufficient public access to justify federal participation. 56 The federal government has decided to limit its participation in protecting these private properties, despite the fact that storm damages to private homes on private beaches are considered NED losses. 57 The federal government has determined that to qualify for federal cost participation, there must be a public access every quarter mile, or a half-mile if sufficient public access exists within the beach segment. 58 Although the government attempts to give access to those paying federal taxes that are used for public beach nourishment, the benefits from the 53 Id. 54 Types of Economic Benefits Associated with Beach Nourishment Projects, supra note A Review of Project Cost Share Allocations and Funding Formulae Used by State, Local and Private Entities, (last visited Jan. 1, 2007). 56 Evaluation of Federally Cost-Shared Projects: The National Economic Development and Regional Economic Development Perspectives, (last visited Jan. 1, 2007). 57 Id. 58 Id. 11

12 nourishment are not evenly spread across the population because not everyone who pays federal taxes will visit the beach. 59 For an initial project, 65 percent of the funding is available from federal funds and for continued maintenance, 50 percent is available. 60 That leaves 35 or 50 percent to be funded by either the state or local government. In Delaware, the state funds 100 percent of the non-federal costs without contributions from the local municipalities. 61 Delaware contributes two percent of statewide occupancy taxes for beach nourishment. 62 Annually, Delaware contributes approximately $2 million to beach nourishment. 63 Residents of communities in which there is little or no public beach access, and the community does not wish to increase public beach access, will be required to pay most if not all of a nourishment project s costs. 64 Tax money funds the beach nourishment. However, beach nourishment puts tax money back into the tax bin. Government entities can use a cost-benefit analysis to determine whether a beach nourishment project will pay back the tax dollars spent. Coastal tourism along with recreation provide a substantial positive economic benefit in the United States in terms 59 Distribution of Project Benefits by Income Level and by Beneficiary Group, (last visited Jan. 1, 2007). 60 A Review of Project Cost Share Allocations and Funding Formulae Used by State, Local and Private Entities supra note Distribution of Project Benefits by Income Level and by Beneficiary Group supra note A Review of Project Cost Share Allocations and Fund Formulae Used by State, Local and Private Entities supra note 55 (citing SHINER MOSELEY AND ASSOCIATES, INC. (2002), Another source has quoted the portion of the occupancy tax used for beach replenishment as one percent. Ron McArthur, supra note A Review of Project Cost Share Allocations and Fund Formulae Used by State, Local and Private Entities supra note 55 (citing JACK FAUCETT ASSOC., INC., THE ECONOMIC EFFECTS OF A FIVE YEAR NOURISHMENT PROGRAM FOR THE OCEAN BEACHES OF DELAWARE (1998)). 64 A Review of Project Cost Share Allocations and Fund Formulae Used by State, Local and Private Entities supra note

13 of jobs, income, and governmental revenues. 65 It has been estimated that the federal government recuperates annually approximately six times the tax revenues expended restoring the nation s beaches form the money spent by foreign tourists at Miami Beach alone. 66 A beach provides tax generation in two main areas: (1) visitor money spent at the beach, and (2) the increase in local property values. 67 Taxes generated by a beach can be broken down into three categories: federal, state and local. 68 Tax Location Tax Source Federal Personal Income tax Corporate Income tax Indirect taxes (gasoline, alcohol, etc.) State Income tax Sales tax Business Permits Property Local Sales tax Property tax Business permits Parking fees Figure 4: Possible Tax Revenue Sources 69 While the federal government s major tax contributor is income taxes, the states and local governments typically rely on property and sales taxes. 70 The residents of a major city such as Washington, D.C. have a choice of several different summer destination beaches in several different states to include New Jersey, Virginia, Maryland, 65 Impact of Beach Nourishment on the Tax Base and Associated Revenues, (last visited Jan. 1, 2007) (emphasis added). 66 Id. (citing James R. Houston, International Tourism and U.S. Beaches, 64 J. OF THE AM. SHORE AND BEACH PRESERVATION ASS N 3-4 (1996)). 67 Impact of Beach Nourishment on the Tax Base and Associated Revenues, supra note Id. 69 Id. 70 Id. 13

14 Delaware and even North Carolina for those who do not mind the extra travel distance. If a once favorite beach degrades due to poor beach quality, that local beach and possibly the state would lose valuable tax revenue because a more desirable beach in a different location would be visited. 71 Therefore, beach nourishment or related beach improvements that retain the local s expenditure within the local region avoid a decrease in local expenditures, and thus maintain taxes and the region s income. 72 In addition to taxes brought into the region by beach visitors, the locals also provide a significant tax base through property values. Beach property benefits from the capitalization of the storm protection and recreation benefits provided by the beach nourishment. 73 The increase in property value normally translates into increased tax revenues from property taxes. 74 D. The Science of Sand Sand is nomadic and constantly on the move with wind and waves. 75 On the average Delaware beaches receive a wave every 10 seconds which amounts to 3.1 million waves a year. 76 In the past, the constant flow of water from the coastal plain rivers carried sediment, much of it sand into the ocean. 77 The ocean currents and waves used this sediment to form the beaches and barrier islands along the coast. 78 River dredging and upstream dams have significantly reduced the flow of sediment to the 71 Id. 72 Id. (quotations omitted). 73 Impact of Beach Nourishment on the Tax Base and Associated Revenues, supra note Id. 75 See Ron MacArthur, supra note Id. 77 Sea Level History, (last visited Jan. 1, 2007). 78 Id. 14

15 ocean. 79 The combination of rising sea levels and the reduction in sediment flow to the ocean from the rivers has added to the beach erosion problem. 80 In addition to a decrease in river sediment, the transport of sand to and from the beaches also plays a major role in beach erosion. The main sediment transport systems are cross-shore (offshore) transport and longshore transport. DRY BEACH Cross- Shore Transport Longshore Transport Atlantic Ocean Figure 5: Cross-shore and Longshore Transport Cross-shore transport causes sand to be carried into the depths of the sea after major storms. 81 Cross-shore transport can, under the correct conditions, carry sand shoreward from offshore shoals or bars from shallow depths during mild wave conditions. 82 Longshore transport is the most significant component of the sediment budget in terms of total movement of sand within the littoral system 83, especially along the open coasts of 79 Id. 80 Id. 81 Sediment Budgets in Coastal Systems, (last visited Jan. 1, 2007). 82 Id. 83 littoral refers to the shore - in the case the shore of the sea. 15

16 the Atlantic The longshore current and wave directions 85 determine the migration pattern of sand along the shore. 86 Next, we look at the effects of dumping a large amount of sand on an eroding beach. A beach nourishment project produces a bulge of sand out into the ocean from that portion of the coastline that has been replenished. 87 The bulge typically creates a steeper profile of the edge of the beach jutting into the ocean. 88 This bulge and steeper profile 89 can change the characteristics of both the cross-shore and longshore transport of sand from that replenished beach. 90 Under normal wave conditions, transport in the longshore direction causes sand to be moved from the project area to adjacent beaches where sediment deposition occurs. 91 Cross-shore transport results in an adjustment toward an equilibrium profile. 92 Increased wave height and sea levels created during storms intensify the cross-shore and longshore transport of sand. 93 The sand used to replenish a beach is taken from an area know as a borrow site. 94 The most important component of a beach nourishment project is the identification of the location of an affordable high quality sand source. 95 Investigations to find a suitable borrow site can range from $100,000 to more than $500,000 and may 84 Sediment Budgets in Coastal Systems, supra note Waves normally do not break exactly parallel to the beach. There is normally an angle between the break of the wave and the beach that causes sand to be moved in a particular direction along the length of the beach. 86 Sediment Budgets in Coastal Systems, supra note Cross-shore and Longshore Transport Models for Large Scale Geological Processes, (last visited Jan. 9, 2007). 88 Id. 89 The profile in this instance is the slanting portion of the beach leading from the dry sand portion of the beach along the wet sand and into the ocean. 90 Cross-shore and Longshore Transport Models for Large Scale Geological Processes, supra note Id. 92 Id. 93 Id. 94 Methods of Investigation to Identify Sources of Suitable Sand for Nourishment, (last visited Jan. 1, 2007). 95 Id. 16

17 include sub-bottom profiling, side-scan sonar, bathymetric mapping, core boring collection, sand testing and analysis. 96 In addition to the cost of investigation to locate the borrow site, there are several factors that can add to the cost of providing sand for a nourishment project: Distance from the borrow site to the replenishment site; Depth of excavation; Water depth at excavation site; Composition of the sediment; Dredging windows restricted by environmental concerns. 97 In a study conducted by the University of Delaware, the cost of the sand for their economic model was placed at $5.21 per cubic yard over the next fifty years. 98 In calculating $5.21 per cubic yard they assumed no decline in cost due to technological advance and no increase due to diminished availability of borrow sediment or accelerated sea rise. 99 E. Delaware s Beach Replenishment Program The geologic trends and processes which have formed the Delaware coastline into its present configuration began approximately 14,000 years ago, when the continental ice sheet began to recede. 100 During those 14,000 years the sea level along the Delaware coast has risen 440 vertical feet moving the Delaware coast 100 miles 96 Id. 97 Id. 98 JEFF WAKEFIELD & GEORGE R. PARSONS, supra note 23, at Id. 100 Regulation Governing Beach Protection and the Use of Beaches Forward, Document 40-07/81/08/1 (Dec. 27, 1983), available at 17

18 west. 101 Before the last ice age, most of what is now the State of Delaware was under the sea. 102 The present sea level rise rate 103, relative to land features, is approximately ½ foot per century. 104 Naturally, this rise in the sea level will affect the erosion of the coastal areas Id. 102 Id. 103 This paper does not address the effect of Global Warming on the sea level rise rate. 104 Regulation governing Beach Protection and the Use of Beaches Forward, supra note Id. 18

19 Figure 6: Map of Coastal Zone Map of Delaware Coastal Zone, available at EA65-428B-AB5B-FBF5A0F5482D/0/CoastalZoneMap.pdf 19

20 A prime example of the encroachment of the sea is the current status of the Cape Henlopen Lighthouse. 107 In 1765, the lighthouse was located 1,600 feet inland from the shoreline. 108 Today, the ocean covers the lighthouse base. 109 The Delaware Department of Natural Resources and Environmental Control (DNREC) acknowledges that efforts to stabilize the beaches will only slow the encroachment of the sea and are only short term fixes. 110 Figure 7: Map of Cape Henlopen Area Ron MacArthur, supra note Id. 109 Id. 110 Regulation governing Beach Protection and the Use of Beaches Forward, supra note Map of Cape Henelopen Area, available at 20

21 In addition to the encroachment of the Atlantic Ocean, storms also pound the Delaware coast. Storms that pound the Delaware coast come in two varieties, tropical and extra-tropical. 112 Tropical storms with winds greater than 74 miles per hour are classified as hurricanes. 113 Extra-tropical storms, also known as northeasters or noreasters contain strong easterly or northeasterly winds. 114 The first northeaster of the fall 2006 season hit the Bethany area on Friday, October 6, causing significant erosion to the beach and damage to the entries to the beach. 115 The storm was characterized by sustained winds of m.p.h. with gusts to m.p.h. and waves reaching 7 to 12 feet in height Regulation governing Beach Protection and the Use of Beaches Forward, supra note Id. 114 Id. 115 Nor easter Damage Assessment, (last visited Jan. 2, 2007). 116 Id. 21

22 Figure 8: Erosion Caused by October 6, 2006 Northeaster. 117 Historically, beach erosion caused by these storms was not a problem as Native Americans never built permanent structures along the shoreline, and the first settlers on these shores quickly moved inland to get away from the instability of the beach. 118 State officials became concerned with beach management in the early 1900s when people started to build along the shore. 119 Today, Delaware annually receives $850 million from the 6 million tourists that visit their 24.5 miles of beaches. 120 Beach replenishment became the latest beach 117 Nor easter Strikes Columbus Day Weekend, NorEaster jpg, (last visited (Jan. 2, 2007). 118 Ron MacArthur, supra note 25 (quoting Tony Pratt, Department of Natural Resources and Environmental Control). 119 Ron MacArthur, supra note Id. 22

23 management practice in the 1970s and 1980s. 121 Delaware started beach replenishment projects along the coast in Delaware pursued 18 beach replenishment projects from 1988 to The recipient beaches were Bethany, South Bethany, Dewey, Fenwick, Indian, Middlesex, and Sea Colony. 124 The beaches received a total of 3.3 million cubic yards of sand at a total cost of $18.4 million. 125 As of July 1989, Bethany Beach alone had spent $833,000 on beach replenishment. 126 By the summer of 1988, the beach at Bethany Beach that at one time was a half-mile-wide beach in front of the boardwalk had eroded to only 30 feet at high tide. 127 A report was generated for DNREC that projected a loss of $30.2 million in tourist revenue and a $43.3 million decline in property values during the period of 1996 to 2000 if the beach replenishments were halted. 128 In 1994, Bethany Beach received 184,452 cubic yards of sand, in 1998, Sea Colony 128,000 cubic yards and in 1994, South Bethany 98,419 cubic yards. 129 Proponents of replenishing beaches argue that rebuilding the beaches protects valuable real estate and assures the vitality of popular vacation spots. 130 The extra width added to the beach also creates a storm barrier, helping to protect inland structures. 131 Critics of rebuilding beaches cite the high costs and the never ending battle of keeping sand on the beaches due to erosion. 132 Duke Professor Orrin H. Pilkey Jr. has 121 Id. 122 Delaware Beach Fill, sr/state.asp?zone=ma&state=de&cat=bf (last visited Jan. 2, 2007). 123 Id. 124 Id. 125 Id. 126 Graeme Browning, Beach Rebuilding Rides a Popular Wave, WASH. POST, Jul. 22, 1989, at E01, available at Id. 128 Delaware Beach Fill, supra note Id. 130 Graeme Browning, supra note Id. 132 Id. 23

24 observed that three quarters of replenished beaches wash away in less than two years. 133 Also beach replenishment is not a quick fix, but instead a long term commitment. 134 The DNREC is adding shore protection by adding a buffer of sand between the sea and the on shore dwellings and thereby attempting to reset the erosional clock by adding sediment to the system. 135 The 1995 National Research Council has cited beach replenishment as a viable engineering alternative for shore protection and is the principle technique for restoration. 136 A DNREC publication, Striking a Balance A Guide to Coastal Dynamics and Beach Management in Delaware identified the primary rewards of beach replenishment as reducing storm damage, enhancing recreation and bettering tourism opportunities. 137 The publication observed that wider beaches act as a buffer to absorb wave energy and provides a reservoir of sand that when migrated to an offshore bar, can reduce the amount of wave attack on the upper beach, thereby reducing the amount of erosion. 138 The coastal engineers stated in the publication that even small additional widths in beaches have big impacts in storm events. 139 A Bethany Beach and South Bethany Beach project has been proposed to replenish these beaches with a price tag of $14.4 million. 140 Economic analysis conducted in 1998 and 2004 confirmed that replenishment costs would be worth the 133 Id. 134 Id. 135 Ron MacArthur, supra note Id. 137 Id. 138 Id. 139 Id. 140 See Id. 24

25 investment. 141 The private community of Sea Colony is ready and willing to join this project to create a united front against the encroachment of the Atlantic Ocean. III. LAW AND PRECEDENT This part first addresses federal law and agencies that apply the federal law. Section B covers Delaware law and the associated agency regulations. Section C addresses Delaware case history. Section D highlights related Delaware Attorney General opinions. A. Federal Law and Agencies Several federal laws have been promulgated for coastal area management and beach erosion. The main federal laws that focus on beach erosion are the Coastal Zone Management Act (CZMA) (Public Law ), Section 111 of the River and Harbor Act of 1968 (Public Law ), and sections of numerous Water Resources Development Acts. 142 The CZMA contains the national framework for improved management of coastal lands and beach erosion control. 143 The intent of Congress in enacting the CZMA was to establish a national policy and develop a national program for the management, beneficial use, protection, and development of the land and water resources of the Nation s coastal zones, and for other purposes. 144 Congress found that the coastal zone is rich in a variety of natural, commercial, recreational, ecological, industrial, and esthetic resources of immediate and 141 See Id. 142 Law and Policy, (last visited Jan. 2, 2007). 143 Id. 144 Coastal Zone Management Act of 1972, Pub. L. No , 86 Stat

26 potential value to the present and future well-being of the nation. 145 The CZMA coverage includes the area of shoreline erosion. 146 To fight shoreline erosion, the CZMA encourages a unified front with the coastal states acknowledging that these decisions can have more than just local significance. 147 The CZMA also anticipates that coastal states may have to deal with rising sea levels due to global warming. 148 At the top of Congress declared national policy in the CZMA was that of restoring or enhancing the Nation s coastal zone for this and succeeding generations. 149 The stated policy includes encouraging and assisting the states with programs to provide for the management of coastal development to minimize the loss of life and property caused by... storm surge, erosion-prone areas and in areas likely to be affected by or vulnerable to sea level rise,...and by the destruction of natural protective features such as beaches, dunes, wetlands, and barrier islands. 150 The intent of Congress in enacting the River and Harbors Act of 1968 was to authorize the construction, repair, and preservation of certain public works on rivers and harbors for navigation, flood control, and for other purposes. 151 Federal assistance for beach replenishment is available under the River and Harbor Act of Non-public shores will be eligible for Federal assistance if there is benefit such as that arising from public use or from the protection of nearby public property or if the benefits to those U.S.C.A. 1451(b) (2006) (c) (i) (l) (1) (2)(B). 151 River and Harbors Act of 1968, Pub. L , 82 Stat. 731 (emphasis added) U.S.C.S. 426e(a) (2006); 33 C.F.R (2006). 26

27 shores are incidental to the project, and the Federal contribution to the project shall be adjusted in accordance with the degree of such benefits. 153 Congress must enact a Water Resources Development Act in order to authorize beach nourishment projects. 154 Before federal funding can be secured for a beach nourishment project, a feasibility study must be provided to Congress by the USACE for information purposes or with a recommendation for authorization. 155 Although the Water Resources Development Act of 1986 recognizes hurricane and storm damage reduction and/or recreational enhancement as the primary purposes of beach erosion control projects, the administration policy precludes the USACE from recommending a project for federal authorization if the purpose is characterized as being primarily for recreational purposes. 156 In 1996 Congress added beach nourishment, including the replacement of sand to the Congressional statement of objectives under the Public Health and Welfare code. 157 Congress has tied water resource projects such as beach nourishment to enhancing regional economic development, the quality of the total environment, including its protection and improvement, the well-being of the people of the United States, and the national economic development. 158 The Secretary of the Army is authorized to provide beach nourishment.where such nourishment has been authorized but in no event shall such additional period extend beyond the fiftieth year after which begins after the date of initiation of construction of such project U.S.C.S. 426e(d) (2006). 154 Law and Policy, supra note Id. 156 Id U.S.C.S (2006) d-5f. 27

28 Another federal program worth discussing as it relates to bench nourishment is FEMA s National Flood Insurance Program (NFIP). The NFIP produces rate insurance maps and insures properties within the 100-year flood zone for local communities participating in the program. 160 Insured coastal structures, when damaged or destroyed, receive insurance claim payments to repair or rebuild. 161 The following table outlines each federal agency s responsibilities and contributions to the preservation of beaches: 162 Agency Responsibilities and Contributions to Beach Preservation CERC - management and research for beach replenishment. NOAA - management and research for beach replenishment. USGS - management and research for beach replenishment. - supports and subsidizes state coastal zone management activities and is responsible for the protection of marine life resources. - role includes minimizing loss of life and property caused by improper development practices in coastal zones. MMS - management and research for beach replenishment. - responsibility for managing the sand and gravel of the outer continental shelf (OCS) for use in 160 Adequacy of Federal and State Laws for Addressing Beach Erosion Problems, (quoting National Flood Insurance Reform Act of 1994, 577) (Last visited Jan. 2, 2007). 161 Id. 162 History and Evolution of Laws Relating to Beach Nourishment, (last visited Jan. 2, 2007). 28

29 projects such as beach nourishment. USACE - designated by Congress to protect the nation s shores from the chronic effects of erosion and coastal flooding, administers the federal shore protection program. FEMA - tasked with the protection of coastal property subject to storm-related flooding. - role includes coordinating disaster planning and response activities, including disaster mitigation and managing the National Flood Insurance Program (NFIP). B. Delaware Law and Agencies The Delaware General Assembly originally vested jurisdiction in the State Highway Department to prevent and repair damage from beach erosion in July of The state of Delaware enacted the Delaware Coastal Zone Act (DCZA) on June 28, The focus of the DCZA is on protecting the coastal area from the destructive impacts of heavy industrialization and offshore bulk product transfer facilities and to protect the natural environment of the coastal areas and safeguard their use primarily for recreation and tourism. 165 The DCZA defined the coastal zone as all that area of the State, whether land, water or subaqueous land between the territorial 163 Atlantis I Condo. Ass n v. Bryson, 403 A.2d 711, 712 (Del. 1979). 164 Coastal Zone Act Program, (last visited Jan. 2, 2007). 165 Id. 29

30 limits of Delaware in the Delaware River, Delaware Bay and Atlantic Ocean, and a line formed by certain Delaware highways and roads The DCZA designates DNREC as the administrative agency of the DCZA. 167 The DCZA also created a State Coastal Zone Industrial Board (Board). 168 The Board is comprised of nine voting members. 169 For a final decision to be made on a permit request, a majority of the total membership of the Board is required. 170 The Board also hears the appeals to decisions by DNREC in DNREC s administration of the DCZA. 171 Twenty five years after the DCZA was passed, DNREC prepared a set of regulations for the Board to govern Delaware s coastal zone. 172 The stated goals of these regulations are: (1) to promote improvement of the environment within the Coastal Zone and (2) to provide existing and new industries in Delaware s Coastal Zone with the flexibility necessary to stay competitive and to prosper 173 In 1972, the control of beach erosion jurisdiction was transferred from the State Highway Department to DNREC with the enactment of the Beach Preservation Act (BPA). 174 The Delaware legislature enacted the BPA to establish a comprehensive beach and dune management program administered by DNREC. 175 The purpose of the BPA was to declare Delaware beaches as 166 DEL. CODE ANN. tit. 7, 7002(a) (2006); See Figure (a) Id. 170 Id Regulations Governing Delaware s Coastal Zone Preamble, Title 7 DNREC 101 (May 11, 1999), available at Id. 174 Atlantis I Condo. Ass n, 403 A.2d at Ron MacArthur, supra note

31 valuable natural features which furnish recreational opportunity and provide storm protection for persons and property, as well as important economic resource for the people of the State. The purposes of this chapter are to enhance, preserve and protect the public and private beaches of the State, to mitigate beach erosion, and to vest in the Department of Natural Resources and Environmental Control [] the authority to adopt such rules and regulations it deems necessary to effectuate the purposes of this chapter. 176 The BPA defines beach as that area from the Delaware/Maryland line at Fenwick Island to the Old Marina Canal immediately north of Pickering Beach, which extends from the mean high water mark line of the Atlantic Ocean and Delaware Bay landward 1,000 feet and seaward 2,500 feet, respectively. 177 Bowers Beach is a common element of the two following maps that the reader can use to synch up the two maps. 176 DEL. CODE ANN. tit. 7, 6801 (2006) (emphasis added) (1). 31

32 Figure 9: Northern Boundary of Beach Area Ending at Pickering Beach 178 Figure 10: Delaware s Beach Area Beaches of the Delaware Estuary, available at 32

33 Atlantic Ocean 1000 feet 2500 feet Mean High Water Mark Figure 11: Definition of Beach Width Additionally, the BPA defines a building line as a line generally paralleling the coast, seaward of which construction of any kind shall be prohibited without a permit or letter of approval from [DNREC]. 180 For those structures already on or seaward of the building line, the BPA directs DNREC to consider beach nourishment work that has enhanced the beach and dune when determining the location and size of reconstruction of those existing buildings if they are destroyed by act of God or other accidental events. 181 The BPA defines a Public beach as any beach owned in fee simple by the federal or state government or any county, city, town or municipality, or any beach for which the State has obtained an easement or agreement for public use. 182 A Private beach is defined as any beach which is not a public beach. 183 The BPA gives DNREC 179 Delaware Beach Area, available at (4). 181 Id (10) (9). 33

34 the authority to enhance, preserve, and protect public and private beaches with the exception being those areas containing archaeological resources. 184 The BPA mandates that DNREC promulgate rules and regulations and prevent and repair damages from erosion of public beaches. 185 Additionally, the BPA mandates the DNREC to prevent and repair damages from erosion on private beaches when in the judgment of the Governor, a dangerous condition constituting an emergency exists. 186 If the State of Delaware takes action, the owner shall be liable for all expenses incurred by [DNREC] in correcting a condition of potential emergency. 187 More importantly, the BPA directs DNREC that no property owner shall be prevented within the regulated area from repairing, modifying, modernizing, updating, or improving their property, or, by performing such actions, be required to relocate or reduce in size so long as these repairs, modifications, or improvements are within the property s foot print. 188 For property owners with private beaches that do not want to maintain the beach, Delaware offers a solution where Delaware would take over the beach and provide the necessary replenishment and maintenance. 189 Under Delaware law, the Secretary may, through negotiation or condemnation proceedings under Chapter 61 of Title 10, acquire the fee simple or any lesser interests in land whenever two-thirds or more of the property owners of property included in the project area along a private beach, as defined by [DNREC], have agreed to allow [DNREC] to undertake any or all necessary works to protect, and enhance the beaches, and allow free public access to the beach; provided, (a) (emphasis added) (b),(c) (emphasis added). 187 Id. (emphasis added) (d) (emphasis added)

35 however, that the agreeing property owners own at least two-thirds of the property included in the project area. 190 Delaware also offers a second option where the property owners can continue to own the property and have the State provide the beach replenishment and maintenance as long as the property owners provide public access. 191 Under this plan, agreement by twothirds of the property owners are also required. 192 The public would gain access to the beach landward to the dune vegetation line or the structure line, whichever is further seaward, in the area of any publicly financed project for the purposes of navigation, fishing, swimming and sunbathing. 193 The BPA also provides for property owners that desire to replenish and maintain a private beach as part of a public project without giving up any of their bundle of sticks. 194 The BPA states that [p]rivately financed projects may be included in a public project when [DNREC] determines that their inclusion will enhance the public project. 195 In addition to the BPA provided by Delaware s legislature, DNREC has published a nine part Regulation Governing Beach Protection and the Use of Beaches (BPAReg). 196 The stated primary purpose of the BPAReg is to enhance, protect, and preserve public and private beaches of the State through a permit and letter of approval (a) (c). 192 Id. 193 Id. 194 See Id.; The bundle of sticks are the rights that belong to a fee simple property owner. Within those rights is the right to exclude others from the property. 195 Id. 196 Regulation Governing Beach Protection and the Use of Beaches, supra note

36 process. 197 Several of the definitions from Part 1 of the BPAReg are worth mentioning here before we move onto other parts of the BPAReg: Beach means that portion of the shore of any body of water which extends from the mean high water mark inland one thousand feet, or to a roadway for automobiles, whichever is closer. Beach Enhancement means the process of improving or increasing the recreational and/or storm protection value of a beach. Beach Erosion means the wearing away of a beach by water or the elements. Beach Nourishment means the process of replenishing a beach with material (usually sand) obtained from another location. Beach Preservation means the process of maintaing the recreational and/or storm protection values of a beach. Beach Protection means the process of preventing the decrease of recreational and/or storm protection values of a beach. Building Line means the line generally paralleling the coast, set forth on maps prepared by the Division with reference to the National Geodetic Vertical Datum (NGVD) and the Delaware State Plane Coordinate System, and based upon information provided by topographic survey. The Building Line is located... along beaches extending from the Delaware/Maryland line to the tip of Cape Henlopen 100 feet landward of the adjusted seawardmost 10-foot elevation contour above NGVD. Emergency means the existence of beach conditions unreasonably dangerous to persons or property. Filling means the process of depositing or placing material to raise the level of a certain area. National Geodetic Vertical Datum (NGVD) means a fixed reference adopted by the U.S. Government as a standard geodetic datum for vertical elevations. Public Beach means any beach owned in fee simple title by the Federal or State government or any country, city, town or municipality; or any beach for which the State has obtained an easement or agreement for public use. Substantial Amount means any amount, the moving, alteration, or removal of which could significantly increase danger of erosion, storm, damage or flooding. Substantial Change means any alteration in the existing characteristics of the beach, as determined by the Secretary, that could significantly increase the danger of erosion, storm damage or flooding and 197 Regulation Governing Beach Protection and the Use of Beaches, PART 2: Administrative Principles, Document 40-07/81/08/1 (Dec. 27, 1983), available at (emphasis added). 36

37 including the moving, digging, or removal of beach material or the erection of any permanent o[r] semi-permanent structure. 198 A definition for a private beach was not included in the definitions section of Part 1. Part 4 of the BPAReg states that a permit from DNREC is necessary for any beach nourishment taking place seaward of the building line. 199 Upon receiving a permit application, DNREC gives notice to the community by advertising in a daily newspaper of state-wide circulation and in a newspaper of general circulation in the county in which the activity is proposed. 200 DNREC provides 15 calendar days for comments. 201 Notice is also mailed to adjacent property owners. 202 The BPAReg requires a minimum of 20 calendar days after notice before making a decision on the permit. 203 According to the BPAReg, several factors are considered before making a final decision on the permit application to include: Submitted comments; The effect on shoreline recession, beach erosion, flooding, and potential damage to the parcel of real property that is the subject of the permit application, and potential damage to any other parcel of real property, public lands, or personal property; Whether an alternative means of protection from storm damage is available; The historical average rate of shoreline change; 198 Regulation Governing Beach Protection and the Use of Beaches, PART 1: Definitions, Document 40-07/81/08/1 (Dec. 27, 1983), available at Regulation Governing Beach Protection and the Use of Beaches, PART 4: Activities Requiring a Permit or Letter Approval from the Division, Document 40-07/81/08/1 (Dec. 27, 1983), available at Id. 201 Id. 202 Id. 203 Id. 37

38 Any other relevant factors. 204 Also under the BPAReg, DNREC has established several factors to determine if a modification or redesign of a project is desirable prior to granting a permit. 205 Those factors include: The probability of federal and state costs for maintaining, repairing or restoring the parcel of real property prior to construction, after construction and after any natural disaster (e.g. storm); Protection from actual and potential financial and property loss for the State, the public and any adjacent landowners; The probability of financial or personal losses to the owner of the structure. 206 As part of the permit process, DNREC is permitted under the BPAReg to take extra measures to include formal or informal investigations or activities. 207 Additionally, DNREC is permitted under the BPAReg to require modification of any proposed structure of activity in order to... reduce public expenditures for beach protection. 208 Once a decision is made, DNREC provides written notice along with the reasoning to the applicant, to adjacent property owners... and to other persons who have requested notification. 209 In addition to the beach, the Delaware legislature also addressed the land under the water in the Subaqueous Lands Act. The purpose of the Delaware Subaqueous Lands Act (SLA) is: to empower the Secretary to deal with or to dispose of interest in public subaqueous lands and to place reasonable limits on the use 204 Id. 205 Id. 206 Id. 207 Id. 208 Id. 209 Id. 38

39 and development of private subaqueous lands, in order to protect the public interest by employing orderly procedures for granting interests in public subaqueous land and for issuing permits for uses of or changes in private subaqueous lands. 210 The term Secretary in the above quote refers to the DNREC Secretary. 211 Some of the other important definitions included in the SLA are: Subaqueous lands means submerged lands and tidelands; Submerged lands means [] [l]ands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State...; Tidelands means lands lying between the line of mean high water and the line of mean low water. 212 Dry Beach Area mean high water or mean high tide Tidelands mean low water or mean low tide Submerged lands Figure 12: Tidelands A permit is required to deposit material on submerged lands or tidelands. 213 Just as DNREC has a separate set of regulations for the BPA, DNREC also has a separate set of regulations based on the SLA. These regulations are titled, Regulations 210 DEL. CODE ANN. tit. 7, 7201 (2006) Id

40 Governing the Use of Subaqueous Lands (SLARegs). 214 The purpose of the SLARegs is to enable DNREC to protect subaqueous lands against uses or changes which may impair the public interest in the use of tidal or navigable waters. 215 Some of the more important SLARegs definitions are: Filling means depositing materials from any source onto tidelands, submerged lands, wetlands or upland, whether for the purpose of creating new uplands or for any other purpose, including the disposal of dredged materials. Mean high water or mean high tide (a tidal datum) means the point on a bank, tide flat, beach or shore, up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation (non-aquatic), physical markings or characteristics, known vegetation lines, and maybe further identified by tidal gauge data, or any other means delineating the mean height reached by a rising tide. Mean low water or mean low tide (a tidal datum) means the average lowest point on a bank, tide flat, beach or shore, found during normal tide conditions. This may be determined by physical or biological characteristics, interpolations from mean high water based on knowledge of tidal range for an area or tide gauge information, if corrected to account for local conditions. Public interest means demonstrable environment, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in subaqueous lands, the Department shall consider the ultimate project and purpose to be served by said use, sale, permit, lease, or transfer of lands or materials. Public subaqueous lands means those subaqueous lands owned by the State of Delaware, including subaqueous lands which were altered or created from non-subaqueous lands by excavation or other means or through loss by natural processes or acts of God. Subaqueous lands means submerged lands and tidelands. Submerged lands means land lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State, together with the beds (channelward of ordinary high water 214 Regulations Governing the Use of Subaqueous Lands, Title 7 DNREC 7504, available at shtml#TopOfPage. 215 Id

41 in non-tidal waters) of navigable rivers, streams, lakes, bays, inlets, ponds, or other waterways within the boundaries of the State. Tidal waters means any waters affected by tide. Tidelands means lands lying between the line of mean high water and the line of mean low water. 216 According to the SLARegs, [d]redging, filling, excavating, or extracting of materials requires a permit from DNREC. 217 The permit is reviewed under SLARegs standards, shoreline erosion control structures or measures..., each activity shall be reviewed on basis of need for the type of structure proposed. 218 One of the main criteria in evaluating overall public benefits would be the extent to which the public at large would benefit from the activity or project and the extent to which it would suffer detriment. 219 The Delaware legislature also enacted a statement of policy in regards to land protection. 220 The Delaware Land Protection Act (DLPA) allows Delaware State agencies to acquire interests in real property for the good of its citizens through a land conservation program. 221 However, the DLPA makes a clear statement that in the acquisition of land, State agencies shall not exercise the right of eminent domain to carry out the provisions of [the DLPA]. 222 In summary, DNREC has at least four Delaware statutes at its disposal for the regulation of lands in the Delaware coastal area. There are some common themes across the four statutes that will be addressed in the analysis section. One common theme is the protection of the coastal area and the preservation of resources for the citizens of 216 Id Id Id Id DEL. CODE ANN. tit. 7, 7502 (2006) (a) (b) (quotations omitted). 41

42 Delaware. Another common theme is the protection of people and property through the preservation of both private and public beaches for the overall good of the coastal zone. Finally, Delaware makes it clear that the State is not in the business of taking private land and that the taking of private land is a very serious act. BPA LPA DCZA SLA Figure 13: Delaware statutes under DNREC In addition to the laws and regulations discussed above, in 1986, the Governor of Delaware fostered the Environmental Legacy Program to assure the continued existence of beaches in Delaware that will provide for anticipated recreational needs and a cost- 42

43 effective level of storm protection for coastal properties, structures, and infrastructure for the next 25-plus years. 223 C. Delaware Case History Although the author did not discover a Delaware case directly on point, the following cases are helpful in understanding the courts probable position on attaching public access to State sand placed on public beaches. These cases are discussed further in the analysis section. In Piekarski v. State ex rel. Sec y of Dep t of Natural Res. & Envtl. Control, 224 the court held that the record supported the necessity for taking of beach lots under the authority of 7 Del. C. 6810(a). 225 The defendants owned 17.5% of the Bowers Beach lots in question and refused to provide an easement. 226 Residents of Bowers Beach had requested assistance from the state in saving their homes from erosion that was threatening the collapse of their homes. 227 Fifty-two of the fifty-nine owners did provide easements in exchange for beach fill granting future public use of that part of the properties covered by the easement. 228 The defendants properties were located in the middle of the project and the court found it would be ineffective in erosion protection to not fill the middle properties. 229 In Atlantis I Condominium Asso n v. Bryson, 230 the court stated that when the Beach Preservation Act of 1972 transferred the beach erosion control from the State Highway Department to DNREC, such action implied that the beaches are a vital natural 223 Ron MacArthur, supra note 25; (25 years would be to 2011) A.2d 209 (Del. 1977). 225 Piekarski, 373 A.2d at Id. 227 Id. at Id. 229 Id A.2d 711 (Del. 1979). 43

44 resource whose importance extends well beyond their geographic boundaries. 231 The court also states that when the General Assembly created the Beach Preservation Act, the Assembly was aware of the difficulties in attempting to legislate the specifics of a coordinated beach management plan, and instead chose to defer to the expertise of the DNREC in that area. 232 In short, the court held that the DNREC s permit procedures are the product of a lawful delegation of legislative power. 233 In Fraternal Order of Firemen v. Shaw, 234 the court stated that it is clearly established that the fact that private individuals secure direct benefits from the legislation in question is no bar to a finding of public purpose. 235 In Delaware v. Putman, 236 three residents were indicted for failing to follow a South Bethany ordinance requiring the construction of revetments on their property. 237 Although the court struck down the indictment using a preemption theory, the court addressed the ramifications of an ordinance that would require the use of private property for a public purpose. 238 The court determined that both the Fifth Amendment and the Fourteenth Amendment of the United States Constitution was in line with Article I, 8 of the Delaware Constitution of 1897 that states that no man s property [shall] be taken or applied to public use without compensation being made. 239 This concept 231 Id. at Id. at Id. at A.2d 734 (Del. 1963). 235 Id. at 736 (citing Aetna Casualty and Surety Company v. Smith, 131 A.2d 168 (Del. 1957) A.2d 1247 (Del. Super. Ct. 1988). 237 Id. at Id. at Id. at 1252 (quoting DEL. CONST.). 44

45 applies as well to a taking by the State of an easement as to the taking of the entire property in fee simple. 240 Moreover, the court acknowledged that: [w]hen a restriction upon the use of property which causes it to depreciate in value is not a general regulation enacted on behalf of public health, safety, morals and welfare, and the injury is not a mere incident of such regulation, but the restriction is intentionally placed upon certain land for the benefit of public improvements, the courts are still more ready to require compensation. 241 D. Delaware Attorney General Opinions The following two Delaware Attorney General opinions address DNREC s latitude in using funds for private beaches and how to determine where the private beach ends and the public ocean of Delaware begins. 242 Following the enactment of the BPA in 1972, the Secretary of DNREC asked the Delaware Attorney General for guidance in the use of the state s million dollar fund. 243 The Attorney General responded with: The Department has wide latitude in utilizing the million dollar fund for obtaining services and equipment as long as such disbursements are consistent with effectuating the purpose of Title 7, Delaware Code, section 6801, to enhance, preserve, and protect the public and private beaches of the State. [DNREC] is vested with authority to enhance, preserve, and protect public and private beaches within the state. 7 Del. C The Attorney General also stated that money spent for equipment and services for study is within the scope and policy of the [BPA]. 245 Also in a response to a Bethany Beach Landowners Association letter of June 2002, Attorney General Jane Brady stated that in Delaware, private ownership extends 240 Id. at (citing Nollan v. Cal. Coastal Comm n, 483 U.S. 825 (1987)). 241 Id. at 1247, 1253 (quoting Nicholson on Eminent Domain, 1.42[9] (1985)). 242 This line is under State jurisdiction and therefore, can vary by State. In some States, the beach is public up to the mean high tide mark, thus allowing public access to the wet sand portion of the beach Op. Att y Gen. 044 (1973), 1973 Del. AG LEXIS Id. (emphasis added). 245 Id. 45

46 to the low tide mark. 246 This is significant because every cubic yard of sand that Sea Colony places below the low tide mark would instantly belong to the State of Delaware and be available for public access. IV. BETHANY, SEA COLONY, SOUTH BETHANY BEACH REPLENISHMENT A. General Facts To date, Delaware s Washington Delegation has garnered more than $20 million in federal funding for beach replenishment. 247 The total cost has been estimated at $14.4 million for the proposed Bethany Beach-South Bethany Beach nourishment project. 248 The Bethany Beach and South Bethany project area will cover about 2 miles of Atlantic Ocean coast. 249 The project at the federal level is categorized as a Storm Damage Reduction program with the purpose of flood and storm damage reduction consist[ing] of a sand fill beach and dune project, in two independent discontinuous segments, for both Bethany Beach and South Bethany Kerin Magill, Just Whose Beach Is It?, SUSSEX SNAPSHOTS, August 1, 2002, The author has not found a legal source to verify this statement. 247 See Ron MacArthur, supra note Ron MacArthur, Cape Gazette, Precious Sand Safeguards Valuable Beachfront Property, US ARMY CORPS OF ENGINEERS, PROJECT FACTSHEET, DELAWARE COAST FROM CAPE HENLOPEN TO FENWICK ISLAND, BETHANY BEACH/SOUTH BETHANY, DE 1 (2006), available at Id. 46

47 Figure 14: Bethany Beach Project Area US ARMY CORPS OF ENGINEERS, BETHANY BEACH AND SOUTH BETHANY STORM DAMAGE REDUCTION PROJECT DRAFT ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT IMPACT, SUSSEX COUNTY, DELAWARE 4 (2005), available at 47

48 Figure 15: South Bethany Project Area 252 Specifically, the project plan that was originally proposed in 1998, was developed to reduce hurricane and storm damages for the communities of Bethany Beach and South Bethany, Delaware. 253 Initially the project calls for 3.5 million cubic yards of beachfill with an additional touchup of 480,000 cubic yards every three years. 254 The proposed federal/state project would provide a taper up to the border of the Sea Colony and stop. 255 The source planned for the initial 3.5 million cubic yards of 252 Id. at 5. Middlesex Beach appears to be included in the South Bethany project area. Id. This paper does not address the Middlesex Beach situation. Middlesex is treated as part of the South Bethany project area for the purposes of the discussion in this paper. 253 Id. at US ARMY CORPS OF ENGINEERS, supra note 248, at Ron MacArthur, supra note

49 sand is the middle portion of Area E, which is a 775-acre area approximately nautical miles offshore of South Bethany. 256 Figure 16: Area E Sand Source 257 Initially the two beach areas will be overbuilt two or three times the target width to compensate for adjustments to wave action in the post project period. 258 After the first storm season, the berm is expected to adjust landward becoming considerably 256 US ARMY CORPS OF ENGINEERS, supra note 250, at Id. at Id. at 2. 49

50 smaller as the subaqueous beachfill moves seaward. 259 The project is planned for FY 2007 if sufficient funds are available. 260 The private community of Sea Colony has participated in two previous beach replenishment projects, 1989 and Sea Colony is also planning to take part in the upcoming Bethany-South Bethany replenishment project. 262 Sea Colony has applied to DNREC for a permit to dredge and transport 290,000 cubic yards of sand during the project to replenish the Bethany and South Bethany beaches. 263 This dredged sand would be used to replenish their beach in addition to the tapered area proposed for the finishing of the Bethany and South Bethany beaches. 264 Sea Colony is proposing to pay 100 percent of all the project costs of their portion of the beach replenishment. 265 Sea Colony residents through a special assessment will collect approximately $1,000 per unit to fund the estimated $2 million cost of their portion of the beach nourishment project. 266 Sea Colony also submitted a permit to USACE requesting that the previously authorized 108,000 cubic yards of sand be increased to 290,000 cubic yards. 267 Sea Colony s stated purpose for the replenishment project is: to replace sand lost from the beach as a result of coastal storms and background erosion since the previous replenishment project in These coastal areas are important to the State of Delaware for the following reasons: (1) they are heavily used recreational beach areas; and (2) they provide erosion and storm damage 259 Id. See Figure 18 for an explanation of berm. 260 US ARMY CORPS OF ENGINEERS, supra note 248, at Katie Wais, Sea Colony Wants in on Replenishment Projects, DELAWARE WAVE, September 13, 2006, Ron MacArthur, supra note Katie Wais, supra note Ron MacArthur, supra note Id. 266 Katie Wais, supra note Public Notice No. CENAP-OP-R (US Army Corps of Eng rs June 2, 2006), available at 50

51 protection to public, commercial and private structures and infrastructure landward of the coastline. 268 The permit will be awarded by USACE unless the District Engineer determines that it would be contrary to the public interest Id. 269 Id. 51

52 Figure 17: Sea Colony Project Area 270 The Department of the Army had previously issued permit CENAP-OP-R on June 16, 2005 to DNREC that included Sea Colony, Bethany Beach, 270 Id. 52

53 South Bethany, Middlesex and North Shores as part of the Federal beach Replenishment project. 271 Sea Colony s specifications of the 290,000 cubic yards include: a. Underwater Fill (below MLW): 1,034,000 sq. ft. b. Intertidal Fill (between MHW & MLW): 117,500 sq. ft. c. Subtidal Fill (below MHW): 1,151,500 sq. ft. d. Supratidal Fill (between HTL & MHW): 70,500 sq. ft. 272 Figure 18: Sea Colony Replenishment Plan Cross-Section 273 The borrow site for Sea Colony would be the same borrow site that has already been approved for the Bethany Beach / South Bethany restoration project Id. 272 Id. 273 Id. 274 Id. 53

54 Figure 19: Sea Colony Borrow Site E Id. 54

55 Figure 20: Close Up of Site E with Notes 276 In addition to the permit required by the USACE, two additional permits are required by DNREC, one for DNREC s Division of Subaqueous Lands and one for DNREC s Division of Soil Conservation. 277 Both permits are required for the replenishment project because the project will cover land both above and below the high 276 Id. 277 Laura Ritter, No Decision Yet on Bethany Beach Replenishment, CAPE GAZETTE, Oct. 23, 2006, 55

56 water line. 278 The Division of Subaqueous Lands scheduled a hearing for August 23, 2006 to solicit the views of interested parties in regards to Sea Colony Recreation Association, Inc., subaqueous lands application to amend an existing permit to add an additional 182,000 cubic yards of beach fill material for a total of 290,000 cubic yards. 279 The Division of Subaqueous Lands held a public hearing on September 6, 2006 where representatives of several citizen groups contested plans to use public sand to replenish private beaches. 280 The period for comment on the second permit application to DNREC s Division of Soil and Conservation and Shoreline Management remained open through October 23, Sea Colony will pay for transporting the sand dredged from [borrow site E] and for pumping the sand onto the beach... [b]ut will not pay for the sand itself. 282 Also important to understanding the need and effect of beach nourishment in the Bethany/Sea Colony/South Bethany Beach area is where the building line is situated. The following figures from the DNREC web site display the building line in these areas. The building line is significant because DNREC has specific regulations that apply to structures built on the seaward side of the building line. 283 Construction, including replenishment that takes place to the seaward side of the building line requires DNREC permits Id. 279 Legal Notice, Permit Application/Public Hearing. (DNREC Wetlands and Subaqueous Lands Section August 2, 2006), available at %20notice.doc?openelement. 280 Laura Ritter, supra note 277. The author spoke with the Division on December 20, 2006, and no decision had been made as of that time. 281 Id. 282 Id. 283 Regulation Governing Beach Protection and the Use of Beaches, supra note Id. 56

57 Figure 21: Bethany Beach Building Line Map 285 Figure 22: Bethany Beach/Sea Colony Building Line Map DNREC Building Line Map, (last visited Jan ). 57

58 Figure 23: Sea Colony Building Line Map Part I DNREC Building Line Map, (last visited Jan ). 287 DNREC Building Line Map, (last visited Jan ). 58

59 Figure 24: Sea Colony Building Line Map Part II 288 B. Sea Colony Specific Facts Sea Colony is a family beach and tennis resort community located in Bethany Beach Delaware. 289 Sea Colony contains 2200 oceanfront condominiums, spacious townhomes and private single-family homes with exclusive access to a half mile of guarded beach. 290 The private beach is located between Bethany Beach and South Bethany. Sea Colony does not allow public access to its private beach DNREC Building Line Map, (last visited Jan. 2, 2007). 289 About Sea Colony, (last visited Jan. 2, 2007). 290 Id. 291 Ron MacArthur, supra note

60 Figure 25: Sea Colony s Private Beach 292 C. Opposition to Sea Colony s Use of State Sand Although Sea Colony proposes to pay for the project costs, Sea Colony will not have to pay for the sand. 293 Some groups are contending that Sea Colony should have to pay for the sand. 294 These groups have gone as far as to request that DNREC conduct a public hearing concerning the use of public money on private lands. 295 DNREC held a public hearing on August 23, 2006 to discuss the beach nourishment project. 296 Common Cause of Delaware has stated that DNREC should force Sea Colony to allow public access to the beach because public funds are being used for beach replenishment of the development s private beach. 297 Common Cause of Delaware believes that the public 292 Amenities, (last visited Jan. 2, 2007). 293 Ron MacArthur, supra note Id. 295 Id. 296 Katie Wais, supra note Ron MacArthur, supra note